Recent Developments

■ H died
during the pendency of the divorce action (we’ve been assured it wasn’t a
result of receiving his lawyer’s bill). H’s executor sought a constructive
trust to prevent the unjust enrichment that would allegedly occur if W retained
marital property beneficially belonging to H.The court held that the equities involved require relief from the strict
legal effects of defendant's death during the divorce.

■ When spouses divorce
marital property is distributed equitably between them in accordance with state
law. But, when one spouse dies during the pendency of the divorce the action is
abated and statutory equitable distribution is unavailable. Marital property
does not lose its essential and distinctive nature as property arising from the
joint contributions of both spouses during the marriage because of the death of
one spouse during the pendency of divorce proceedings. ■ Upon a sufficient
evidentiary showing the courts should invoke the equitable remedy of
constructive trust, and principles of quasi-contract, to avoid the unjust
enrichment that would occur if the marital property held by the surviving
spouse included a share beneficially belonging to the deceased spouse’s estate.■ When property has
been acquired in such circumstances that the holder of legal title should not
in good conscience retain the beneficial interest, equity converts the owner
into a trustee.■ Public policy would
be disserved if courts were to automatically foreclose equitable claims
concerning marital property presented by the estate of a deceased spouse. The
prospect of an estate continuing a battle over marital property that cannot be
completed by a spouse who died while the divorce was pending is unpleasant, but
precluding an estate from obtaining an equitable remedy is not appropriate. Kay
v. Kay, No.A-93-08, New Jersey Supreme Court, October 13, 2009.

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